Gabriela Lopez / Sun Staff Videographer

Prof. Joseph Margulies, law, spoke at a rally last March where community members demanded that Cornell be a sanctuary for undocumented students.

March 20, 2018

Professor Details Career Defending CIA Blacksite and Guantanamo Detainees, Believes Politicians Who Support Torture Can Redeem Themselves

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Although widely recognized for securing the rights to judicial review for Guantanamo detainees in Rasul v. Bush, Prof. Joseph Margulies, government and law, considers his celebrated 16 years advocacy for the rights of CIA blacksite detainees as a “failure.”

While the landmark 2004 Rasul v. Bush decision created the “appearance of success,” he was “not happy” to be identified with what he considers a court decision that failed to live up to its promises of prohibiting government overreach.

“If Rasul was about achieving meaningful restraint on executive power and the War on Terror … and if that’s what people remember it for, then it was a failure. We have not achieved meaningful restraint on executive power in the War on Terror,” Margulies said.

“Disillusioned” by the repeated failure of the legal system in reigning in the War on Terror, Margulies said one of the key lessons he learned during his 30 year-career was acknowledging the “impotence” of law.

“Political judgement prevails, but the political judgement is cloaked in law,” Margulies emphasized. “Using the law makes it appear as though we are making a purely legal judgement, free from politics. That’s what Cheney will say. He will say that the policy was entirely legal, and therefore also just. He is factually wrong, legally wrong, and morally wrong. … It’s politics. Political power drives the decision.”

While Margulies complained that “the first line” in his obituary will most likely mention Rasul v. Bush, he personally found his “proudest moment as a lawyer” to be when he fought a negligent criminal justice system.

“My colleague and I tried a lawsuit on behalf of the family of a man who killed himself in prison. He was mentally ill and had been abandoned  … by prison officials,” Margulies said. “We sued the prison and these officials and won … and that might have been one of my proudest moment as a lawyer. We made sure that his young son will be provided for as he grew up, and that was important.”

Although he felt satisfaction pursuing other civil rights cases, Margulies devoted much of his career to defending detainees. He admitted “it’s hard … to remember” why he chose to do this; in fact, he said he may have “reconsidered” participating in the detainee cases if he knew that it would consume nearly half his career.

“I never, never thought it would last this long,” Margulies said. “I tell you, after we won the decision in Rasul vs. Bush … we all thought the prisons would close within the year. When I got involved in late 2001 … we didn’t even know the enhanced interrogation program was taking shape or that it would soon be implemented.”

“It’s more a series of events that unfolded … getting involved in each stages not knowing what the future will demand of you,” he added.

Margulies is also serves as counsel for Abu Zubaydah, an innocent detainee who was, according to a Senate investigation, waterboarded 83 times, suspended from hooks in a ceiling and crammed into a tiny box for hours, all in just under three weeks.

But despite what he knows about the CIA’s involvement in enhanced interrogation, Margulies refused to outright condemn the organization “in perpetuity.” Indeed, he even cautioned in a Time article against “knee–jerk condemnation” of nominated CIA director Gina Haspel, who may have played a part in the torture of Zubaydah, according to The Washington Post.

“There are many at the CIA … who have done terrible things,” Margulies said. “But, that’s not an indictment of the entire organization. II believe in the power of redemption. I have resisted the idea that a person is simply the worst thing that they have done. … No person should be judged solely by the worst thing they’ve done in their life.”

Although Margulies believes him to be “simply as wrong as thoroughly as man can be” for helping implement “enhanced interrogations,” Margulies extended the possibility for redemption to former Vice President Richard “Dick” Cheney, who will be visiting Cornell Wednesday.

“He is wrong as a matter of fact, wrong as a matter of law, and wrong as a matter of moral justice,” Margulies said. “And that is as wrong as you can be. Even with that I do not condemn [him] as a person … Even he is capable of redemption. I doubt he will ever be redeemed because he thinks he has done no wrong, but I condemn what he has done, not him as a person.”

Margulies described his commitment to redemption as a “larger philosophical orientation” that informs many of his decisions.

“I have seen too many people change,” he said. “I have seen too many people condemned for mistakes they have made and horrible things they have done, but those mistakes, do not represent the whole of their existence.  I think it is a great waste, a great tragedy that they are judged on the worst things they have done, and I refuse to do it.”

While the use of most “enhanced interrogation” techniques has been suspended by an executive order signed by President Obama, Margulies said “it’s horrible to think” that the detainee cases are behind us.

“As long as people are being detained because of that program … and as long as we continue to behave as though the program has no continuing collateral consequences — in fact, they aren’t even collateral; they are direct consequences — then, of course, we haven’t learned the lesson of the program, or we haven’t rectified that which made it so destructive,” Margulies said.

“So, it is actually not a thing in the past, absolutely not,” he added.